Vladek on Martial Law, the Suspension Power and the Insurrection Act

Stephen I. Vladeck, Univ. of Miami, has just posted an article forthcoming in a symposium issue of the Temple Law Review on Executive Power. Vladeck's article is The Field Theory: Martial Law, the Suspension Power, and the Insurrection Act. Here's the abstract:

In Ex parte Merryman, Chief Justice Taney famously rejected President Lincoln's power to unilaterally suspend the writ of habeas corpus in and around Baltimore at the outset of the U.S. Civil War. According to Taney, only Congress can provide for suspension of the writ, and Congress had not so provided. Just one year later, though, the Vermont federal circuit court held, in Ex parte Field, that the suspension of habeas corpus is necessarily coincident to the imposition of martial law. Because President Lincoln had the statutory authority to impose martial law by virtue of the so-called Militia Acts, Field concluded, Congress had effectively, if not explicitly, given sanction to Lincoln's suspension of habeas in those areas where martial law was validly in force.

This Article attempts a thorough reconstruction of the "Field theory," beginning with the facts of Merryman itself before moving to the pre-Civil War precedents on which the decision in Field relied. As it concludes, the President's authority to impose martial law in crisis situations does in fact derive from the Militia Acts, and there is at least a colorable argument that Baltimore was under martial law at the time Merryman was decided. More importantly for present purposes, though, the Article analyzes the deep and profound questions as to the substantive preconditions for the imposition of martial law through the lens of the modern-day Insurrection Act, concluding that the statutory framework, in current form, does not adequately demarcate the point past which martial law is appropriate. Because Congress has the power to provide for the calling forth of the military to respond to domestic crises, Congress can provide for greater accountability - especially at the end of the next emergency - and, the Article concludes, Congress should do so.